ROSTAI, v. ENTERPRISES

Filed 4/5/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Richard Todd Fields, Judge. Affirmed.

Nicastro Piscopo Ogrin, Kenneth Dean Ogrin; and Edward J. Haggerty for Plaintiff and Appellant.

Stone & Hiles and David L. Schaffer for Defendants and Respondents.

In this case we hold that the doctrine of primary assumption of the risk is a complete defense to an action for damages based on the alleged negligence of a personal fitness trainer in failing to investigate the cardiac risk factors of a client as a result of which the client allegedly suffered a heart attack during his first training workout. Masood Rostai, plaintiff and appellant (hereafter plaintiff) sued Neste Enterprises dba Gold's Gym (hereafter Gold's Gym), and Jared Shoultz, defendants and respondents (hereafter referred to either individually by name or collectively as defendants), for damages based on negligence. In his complaint, plaintiff alleged that he had entered into an agreement with defendants to provide him with a customized physical fitness program; defendants owed plaintiff a duty to investigate his health history, including his current physical condition and cardiac risk factors; on September 11, 2002, plaintiff participated in his first training session at Gold's Gym with defendant Shoultz; defendant Shoultz knew plaintiff was not physically fit and was overweight; defendant Shoultz was aggressive in his training of plaintiff; near the end of the 60-minute training session, after complaining several times to defendant Shoultz that he needed a break, plaintiff suffered a heart attack; and defendants' negligence was a proximate cause of plaintiff's injury.

In their answer to plaintiff's complaint, defendants asserted among other defenses that plaintiff's injury was the result of a risk inherent in strenuous physical activity; that defendants' neither increased that risk nor concealed any of the inherent risks; and therefore the doctrine of primary assumption of the risk bars plaintiff's claim. Defendants moved for summary judgment asserting the doctrine of primary assumption of the risk as the basis for their motion. Gold's Gym also asserted that it had no liability for the acts of defendant Shoultz because Shoultz is an independent contractor. Defendants prevailed on summary judgment and plaintiff appeals. We will affirm for reasons we now explain.

FACTUAL BACKGROUND

The facts are undisputed. Defendant Shoultz is a personal fitness trainer. Pursuant to a contractual agreement, Shoultz pays Gold's Gym a fee in return for which Gold's Gym permits him to use the gym to train his clients. Plaintiff approached Shoultz while he was shopping in plaintiff's furniture store and told Shoultz that he wanted to look like him -- buff and physically fit. Shoultz agreed to provide fitness training to plaintiff. Plaintiff had a heart attack at the end of his first 60-minute training session with Shoultz at Gold's Gym.

DISCUSSION

Plaintiff contends in this appeal that the trial court incorrectly granted summary judgment in favor of defendants because the doctrine of primary assumption of the risk applies only to sports, and fitness training is not a sport. Defendants, in turn, contend that plaintiff did not assert that â€